2353-00-PS The Ottawa Transition Board, Applicant v. The Ottawa-Carleton Public Employees' Union Local 503, The Civic Institute of Professional Personnel of Ottawa-Carleton, The Ontario Nurses' Association, Canadian Union of Public Employees Local 2187, Canadian Union of Public Employees Local 2617, Canadian Union of Public Employees Local 4159, Teamsters Local Union 91, Canadian Union of Public Employees Local 1525, Canadian Union of Public Employees Local 1670, Canadian Union of Public Employees, Local 2753, Canadian Union of Public Employees Local 1246, Canadian Union of Public Employees Local 1021, Canadian Union of Public Employees Local 3438, Canadian Union of Public Employees Local 2293, Canadian Union of Public Employees Local 2504-01, Canadian Union of Public Employees Local 2753-01, Canadian Union of Public Employees Local 1525-1, Canadian Union of Public Employees Local 2504, Canadian Union of Public Employees Local 20, International Alliance of Theatrical Stage Employees (Local 471), Ottawa-Carleton Regional Police Association, Ottawa-Carleton Regional Police Senior Officers' Association, The Cumberland Township Professional Fire Fighters Association Local 2621 International Association of Fire Fighters, The City of Kanata Professional Fire Fighters Association, Nepean Professional Fire Fighters' Association, Local 1484 International Association of Fire Fighters, and Ottawa Professional Fire Fighters Association, Responding Parties v. Amalgamated Transit Union, Local 279, Intervenor.

2883-00-R Ontario Public Service Employees Union, Applicant v. Eastern Medical Services and The City of Ottawa, Responding Parties v. Ottawa-Carleton Public Employees Union, CUPE Local 503, Intervenor.

2946-00-R Ontario Public Service Employees Union, Applicant v. City of Ottawa, Responding Party v. Ottawa-Carleton Public Employees' Union, CUPE Local 503, Intervenor.

BEFORE: Christopher J. Albertyn, Vice-Chair.

APPEARANCES: John Monger, Catherine Green, Randal Caverley and Keith Dykes for OPSEU; Andrew Tremayne, Sharmila Clark and Elizabeth Blundeh for the City of Ottawa; David Jewitt and Nancy Rosenberg for CUPE.

DECISION OF THE BOARD; June 1, 2001

The Issues

1. This matter involves three applications. Board File No. 2353-00-PS is an application filed pursuant to the provisions of the Public Sector Labour Relations Transition Act, 1997 (Bill 136) ("the PSLRT application"). Board File No. 2883-00-R is an application under the provisions of section 69 and 1(4) of the Labour Relations Act, 1995 ("the Act"). Board File No. 2946-00-R is a certification application under the Act.

2. Collective bargaining relationships in the City of Ottawa ("the City") were restructured under the PSLRT application following the amalgamation of various local authorities and municipalities into the new City of Ottawa. The amalgamation occurred under the City of Ottawa Act, 1999 (Bill 25).

3. Under the certification application OPSEU has applied to be certified for a paramedic bargaining unit consisting of ambulance officers employed by the City since January 1, 2001. CUPE Local 503 ("CUPE") was declared by the Board to be the bargaining agent for a large Outside/Inside unit of the City's employees in a decision dated January 11, 2001. Were there no other considerations, the paramedic employees whom OPSEU seeks to represent would fall within the CUPE bargaining unit.

4. On January 29, 2001 the Board ordered a representation vote in respect of OPSEU's proposed paramedic bargaining unit. The employees who would fall within that bargaining unit were asked if they wished to be represented by OPSEU in their employment relations with the City. They did not have an option of voting for CUPE. The vote took place on February 1, 2001. OPSEU was overwhelmingly successful. 210 of 218 employees who voted cast their ballots in favour of representation by OPSEU.

5. Five issues were set out in the Board's decision of January 29, 2001, being:

6. Whether OPSEU's certification application is timely and/or whether OPSEU is barred from pursuing the application.

7. Whether the employees in OPSEU's proposed bargaining unit fall within CUPE's bargaining unit.

8. If so, whether the City's bargaining unit configuration, as determined in the Board's decision of January 11, 2001 in Board File No. 2353-00-PS, should be re-opened for consideration.

9. If so, whether there should be a separate bargaining unit for paramedic employees (ambulance officers), carved from CUPE's unit.

10. If so, whether effect should be given to OPSEU's representation vote, or whether there should be another representation vote, involving CUPE.

11. OPSEU's certification application was filed on January 8, 2001.

12. The ambulance officers who would fall into OPSEU's bargaining unit were employed by the Ministry of Health or Eastern Medical Services. By reason of the Service Improvement Act, 1997, S.O. 1997, c. 30, Sch. A, ss.1-20, amendments were made to the Ambulance Act (and the Health Facilities Special Orders Act). Land ambulance services were transferred from the province to upper-tier municipalities. "The City", which was then the Region of Ottawa-Carleton ("the Region"), acquired fiscal responsibility for the ambulance service on January 1, 1998. It was obliged to assume administrative responsibility by no later than January 1, 2001. The Region chose to leave the administrative incorporation of its ambulance service until it had decided whether to outsource the service, or to keep it in-house. That decision was not taken until the latter part of 2000, when the Region (by then the Ottawa Transition Board, "the OTB") decided to keep the service in-house and to assume administrative responsibility from January 1, 2001. It was then that the ambulance operators became employees of the City.

13. Accordingly, the transfer of the ambulance service to the City occurred independently and separately from the amalgamations under the Public Sector Labour Relations Transition Act, 1997 and under The City Ottawa Act, 1999, although it coincided in time with the transfer date under those Acts.

14. CUPE argues that as of January 1, 2001, the date on which the new City of Ottawa came into being (as successor of the OTB and other municipalities), it represented all Outside/Inside workers, including those paramedics who were taken into the City's employment on that day. OPSEU disputes that. The City takes no position on the matter.

Background

10. None of the predecessor municipalities of the City operated a land ambulance service or employed paramedic employees prior to January 1, 2001.

11. The Council of the City's penultimate predecessor, the Region, passed a resolution on February 13, 2000 requesting its senior staff to prepare a proposal for bringing the land ambulance service in-house. The Region's Human Resources department contacted CUPE and suggested that CUPE enter into a Letter of Intent regarding the downloading of the ambulance service. The Region wished to secure an undertaking from CUPE that there be a performance based standard for the delivery of the ambulance service. The assumption of the Region, when making that contact, was that the ambulance operators would form part of CUPE's bargaining unit.

12. A meeting was held on March 2, 2000 between representatives of the Region, CUPE and OPSEU Locals 475 and 413, which then represented the paramedics. Following that meeting, on March 7, 2000, counsel for CUPE wrote to the Director of OPSEU's Ambulance Division confirming what had been conveyed in that meeting by CUPE's President, that CUPE's "all employee" scope clause would require that any paramedics or other employees involved in the delivery of the land ambulance service fall within CUPE's bargaining unit. The letter further recorded that the Acting Director of Labour Relations of the Region had requested CUPE to confirm its willingness and intent to represent paramedics and other employees associated with the land ambulance service. Counsel for CUPE confirmed that willingness and intent.

13. Also on March 7, 2000 counsel for CUPE wrote to the Region, advising of CUPE's attitude that, when the Region (in fact, the City) assumed responsibility for the land ambulance service, CUPE expected the employees concerned to fall within CUPE's bargaining unit scope. CUPE was willing to engage in discussions on the proposed Letter of Intent, and counsel suggested that the paramedics' existing representative (OPSEU) be included in further discussions.

14. OPSEU wrote to the Region on the same day and advised that it was seeking separate bargaining unit status for the paramedics in the City. The letter recorded that the Region had indicated an openness to a separate stand-alone paramedic unit.

15. On April 6, 2000 a letter was written by the Region to each paramedic. It set out CUPE's and OPSEU's competing claims to bargaining status for the paramedics. It took no position on the matter.

16. Between April and July 13, 2000 representatives from CUPE and OPSEU held discussions with the Region regarding the anticipated integration of paramedic employees on January 1, 2001. On July 13, 2000 OPSEU filed a complaint with the Board objecting to, among other things, CUPE's continued presence in the discussions concerning the paramedics. CUPE then withdrew from the discussions, but reserved its right to claim that it would represent the paramedics once they were employed by the City.

17. Discussions between CUPE and the OTB, which had replaced the Region, were taking place during 2000 pursuant to the provisions of Bill 25 and Bill 136. The discussions between OPSEU and the City were on a wholly different track, pursuant to the downloading under the Ambulance Act. On October 18, 2000 the OTB reached an agreement with CUPE and others under Bill 25 as to the bargaining units for the new City and the bargaining agency of the various contending unions. It was a comprehensive agreement, which, in the minds of the parties, resolved most of the issues concerning the future labour relations structure of the City. OPSEU was not a party to the discussions or to the agreement. That agreement was substantially adopted by the Board when the decision of January 11, 2001 was issued.

18. OPSEU was not given notice of the City's PSLRT application and, although it was aware of the application, it did not seek intervenor status. That was unfortunate because, at the time the Board was in the process of directing the bargaining unit structure for the City following the amalgamation of the various local authorities which compose the new city, there was no input from OPSEU and its contentions in favour of a separate bargaining unit for paramedic employees were not considered. That issue did not arise during the Board's deliberations concerning what would be the appropriate structure of bargaining units in the City after January 1, 2001. The OTB committed itself to the October 18, 2000 agreement and it was content that CUPE secure the bargaining rights for the large Outside/Inside unit, which (but for this application) would include the paramedic employees (who were not then employed by the OTB).

19. Since January 1, 2001 the City has held in trust the union dues payable by the paramedic employees, pending the determination of who will be their bargaining agent.

Is OPSEU's certification application timely and/or is OPSEU otherwise barred from pursuing it?

The Parties' submissions

20. In CUPE's response to the certification application it relied upon the provisions of section 28(2) of Bill 136. That section reads:

21. (2) During the period beginning 10 days after the order is requested and ending when the order is made, no person may apply for certification of a bargaining agent to represent employees of the successor employer who are not members of a bargaining unit when the order is requested.

CUPE contended that this provision barred OPSEU's certification application by making it untimely. At the hearing CUPE did not pursue this basis for its challenge to the timeliness of OPSEU's application. Presumably that is because the paramedics appeared to be members of a bargaining unit (OPSEU's) when the Region made its request to the Board in the PSLRT application.

21. The basis for CUPE's timeliness challenge was different at the hearing. Its argument at the hearing is based on the following. It contends that the agreement of October 18, 2000 constitutes a voluntary recognition agreement between CUPE and the City. It suggests agreement is a complete bar to OPSEU's certification application and that the application is untimely. CUPE refers to York (Regional Municipality) [2000] O.L.R.D. No. 353 (Board File No. 2994-99-R). In that case the Board found that an agreement concluded between the York Regional Municipality and CUPE (which was the employees' bargaining agent) in respect of the anticipated download of an ambulance service from the province, was a valid recognition agreement. The parties had agreed that CUPE would represent paramedic employees when they became employed by the York Regional Municipality. Those parties voluntarily extended the scope of the union's bargaining unit. The Board found that the agreement was valid and that the York Regional Municipality and CUPE could voluntarily extend CUPE's bargaining rights over the paramedic employees without their actual consent so long as CUPE continued to enjoy the support of a majority of the employees in its overall bargaining unit. See ¶¶39-40:

22. It is my determination that the agreement entered into between the Region and CUPE is sufficient to constitute a valid voluntary recognition agreement such that, regardless of the outcome of the issue with respect to the scope of the Collective Agreement, there would be a bar to OPSEU's application for certification. As a result, I make no determination with respect to the issue of the scope of the Collective Agreement.

23. It is my determination that, so long as a trade union continues to enjoy the support of a majority of the employees in the bargaining unit, an employer and trade union are entitled to adjust the parameters of the bargaining unit to encompass new classifications. In the instant matter, assuming without so finding that the placement of the paramedics in the bargaining unit was an expansion of the pre-existing bargaining unit, it is my determination that CUPE and the Region were entitled to enter into such an agreement provided CUPE maintained majority support in the entire bargaining unit and the agreement did not constitute employer support within the meaning of section 53. CUPE clearly has majority support in the bargaining unit and I do not find the Region to have given support to CUPE within the meaning of section 53. Thus, assuming the agreement to constitute a voluntary recognition agreement it is valid.

24. Counsel for CUPE suggests that the position is even stronger for CUPE in this case than was the case in York (Regional Municipality). In this case, CUPE represents a large all employee unit by reason of the agreement concluded with the OTB on October 18, 2000. In York (Regional Municipality) CUPE held bargaining rights for particular positions occupied by employees. The voluntary recognition agreement entailed the expansion of the positions to include paramedic employees. Here, by contrast, the paramedic positions necessarily fall within the all employee unit. That, CUPE contends, makes this a clearer case for the existence of a voluntary recognition agreement which bars OPSEU's certification application. From CUPE's perspective it was recognized by the City as representing all Outside/Inside employees and the paramedics fall within the broad parameters of that unit immediately upon their employment on January 1, 2001: Hotel Dieu Hospital, [2000] OLRB Rep. March/April 218.

25. CUPE refers also to the Board's decision in Quinte Healthcare Corp., [2000] OLRB Rep. Jan./Feb. 112. Like in this case, the incumbent union (the SEIU) concluded an agreement with the employer as regards the bargaining structure which would exist from the changeover date, following a hospital amalgamation. The Board found (at 120, ¶30) the agreement to be an agreement as contemplated under section 20(2) of Bill 136. It found too that the agreement came into effect on the date it was executed. Applying that case to the facts here, the agreement concluded between CUPE and the OTB occurred on October 18, 2000, and was, on the strength of the Board's decision in Quinte Healthcare Corp., effective from that date.

26. In Quinte Healthcare Corp. the Board re-affirmed (at 120, ¶35) the principle that parties to a collective agreement can agree to expand or contract the scope of their bargaining unit. According to CUPE, that is what occurred on October 18, 2000, when the OTB (on behalf of the inchoate City) agreed to the bargaining unit which CUPE now represents. The expansion of CUPE's bargaining unit was a form of voluntary recognition, which prevents OPSEU from applying to represent employees who fall within it.

27. OPSEU responds by suggesting that the facts in Quinte Healthcare Corp. are different from those here. It argues that case involved a displacement application in respect of a group of employees who were within the incumbent union's bargaining unit. Here, counsel suggests, we are dealing with a situation in which CUPE could not (by reason of the provisions of section 20(2) of Bill 136) have included the paramedic employees within its bargaining unit. OPSEU is not therefore making a displacement application because, in counsel's submission, at the date of its certification application, CUPE did not represent the paramedic employees.

28. CUPE suggests that Bill 25 and Bill 136 have no bearing upon the employment of the paramedics and that the references to the Crown being a predecessor employer in Bill 136 should be read as referring to circumstances in which the particular operation or enterprise of the Crown is being incorporated within the new merged entity, e.g. if a provincial hospital is merged with another. As a consequence, says CUPE's counsel, section 20(2), sections 23(4) and 23(6) and section 14 of Bill 136 have no bearing upon the application.

29. CUPE refers also to The Corporation of the County of Haliburton, (unreported decision of the Board dated February 2, 2001, in Board File No. 2266-00-R). That case has similarities with this. There OPSEU sought to be certified in respect of paramedic employees who had been downloaded to the County of Haliburton under the same provisions of the amending legislation of the Ambulance Act as apply in this case. The question at issue was whether CUPE's bargaining rights extended to an all-employee bargaining unit, in which event the paramedic employees would fall within its unit. It was common cause between the parties that OPSEU's certification application would be untimely if CUPE's bargaining unit was an all-employee unit. The Board found that to be so and OPSEU's certification application was found to be untimely. The basis of the Board's finding (at ¶32) was that the County and CUPE had modified their collective agreement before OPSEU's certification application and made provision to include the paramedic employees, whom OPSEU subsequently sought to represent, within CUPE's bargaining unit. As the Board said, at ¶34:

... The parties have in effect "adjusted the parameters" of the bargaining unit by in effect, entering into a voluntary recognition agreement in respect of a broader grouping of employees that includes administrative employees and ambulance employees.

28. Furthermore, CUPE argues, its bargaining rights did not fall into a "black hole" on January 1, 2001. Although those rights were recognized by the Board only on January 11, 2001, CUPE's bargaining rights for Outside/Inside workers continued for the period from October 18, 2000 through to the date of the Board's decision on January 11, 2001. Hence, on this argument, when OPSEU made its certification application on January 8, 2001, CUPE was already the representative of the paramedic employees who became members of the City's staff on January 1, 2001. The paramedic employees were an accretion to CUPE's recognized bargaining unit. There was no open period in which OPSEU could have sought to represent them. There was no time during which the employees were not represented by CUPE.

29. OPSEU submits that CUPE did not hold bargaining rights for paramedic employees at the changeover date, January 1, 2001. It says there was no voluntary recognition agreement in place as of that date and, if there was, it could not include the paramedics.

30. The City has taken no position on the inclusion of the paramedics or their exclusion from CUPE's bargaining unit. It has not avowedly expressed any acknowledgement that the ambulance officers fall within CUPE's unit. That, suggests OPSEU, is indicative of the City's failure to have taken any positive, identifiable steps to voluntarily recognize CUPE as the paramedics' bargaining agent. The City's holding in trust of the union dues of the paramedic employees is indicative, says OPSEU, of the City's ambivalence on the issue, and of the fact that it has not recognized CUPE as being their collective bargaining agent.

Decision on timeliness

31. CUPE challenges the applicability of Bill 25 and Bill 136 to this application. Those statutes are relevant to a determination of this application because its validity depends upon what the effect was of agreements concluded, and Board decisions made, pursuant to provisions in those statutes. The relationship between Bill 136 (and Bill 25) to the Act is important to the determination of this issue. In that regard, I have considered the Board's approach to the matter in Women's Christian Association of London, [1998] OLRB Rep. May/June 496 (also cited as St. Joseph's Health Centre [1998] O.L.R.D. No. 2872).

32. As a starting point it may be useful to contrast certain differences between Bill 136 and Bill 25. Bill 25 is a later statute. Bill 136 dealt, inter alia, with the amalgamation of the new City of Toronto. Bill 25 reflects some of the lessons learned from that experience. It allows for agreements to be made concerning bargaining unit consolidation and re-configuration and for applications to be made to the Board prior to the changeover date, whereas in Bill 136 that could occur only on or after the changeover date. In other respects, though, Bill 25 substantially mirrors what is contained in Bill 136, and certain of its provisions are incorporated by reference.

33. Section 30 of Bill 25 is the starting point for addressing the issue of the alteration of the bargaining unit of the City. It reads:

34. (1) Before January 1, 2001, for the purposes of section 20 of the Public Sector Labour Relations Transition Act, 1997 the transition board may make an agreement with bargaining agents who represent employees of an old municipality to change or not to change the number and description of the bargaining units in respect of which the agents have bargaining rights, and the agreement is binding upon the city as if it had been made by the city.

(2) The agreement does not come into effect until the later of,

(a) the day on which the conditions described in subsections 20(7) and (8) of the Public Sector Labour Relations Transition Act, 1997 are satisfied; and

(b) January 1, 2001.

(3) If an agreement is made, during the period beginning 10 days after it is executed and ending when it comes into effect, no application may be made for certification of a bargaining agent to represent employees of an old municipality who are not members of a bargaining unit when the agreement is executed.

(4) During the period beginning when subsection (1) comes into force and ending on December 31, 2000, no application may be made for certification of a bargaining agent to represent employees who are already represented by a bargaining agent and no application may be made for a declaration that a bargaining agent that represents such employees no longer represents them.

(5) On and after January 1, 2001, the right to make an application described in subsection (4) is (subject to the Public Sector Labour Relations Transition Act, 1997) determined under the Act that otherwise governs collective bargaining in respect of the employees.

(6) For the purposes of clause (2) (a) of this section and of subsection 20(7) of the Public Sector Labour Relations Transition Act, 1997, the transition board shall be deemed to be the employer.

(7) If an agreement described in subsection (1) is made, any agreement made by the bargaining agents concerned under section 21 of the Public Sector Labour Relations Transition Act, 1997 does not come into effect until the later of,

(c) the day on which the conditions described in subsection 21(2) of that Act are satisfied; and

(d) January 1, 2001.

(8) A copy of the agreement under section 21 of the Public Sector Labour Relations Transition Act, 1997 may be given either to the transition board before January 1, 2001 or to the city after December 31, 2000, for the purposes of clause (7)(a) of this section and of subsection 21(2) of that Act.

(9) For the purposes of subsection 21(4) of the Public Sector Labour Relations Transition Act, 1997, the transition board or a bargaining agent may make a request to the Ontario Labour Relations Board before January 1, 2001.

34. An agreement, such as is contemplated in section 30(1) of Bill 25, was concluded between the OTB and CUPE on October 18, 2000.

35. By reason of the provisions of section 30(2) of Bill 25, that agreement came into effect on the later of October 18, 2000 (the day on which the conditions described in subsections 20(7) and (8) of Bill 136 were satisfied) and January 1, 2001. In other words, the October 18, 2000 agreement came into effect on January 1, 2001.

36. By virtue of the provisions of section 30(5) of Bill 25, OPSEU's certification application is to be determined under the [Labour Relations] Act (that being "the Act that otherwise governs collective bargaining in respect of the employees"), yet subject to Bill 136.

37. There was some debate between CUPE and OPSEU as to whether section 20(1) or section 20(2) applies to this situation. CUPE suggested, as an alternative to its argument that Bill 136 has no application to this case, that section 20(1), and not section 20(2), applies. OPSEU argues the opposite.

38. Sections 20(1) and 20(2) of Bill 136 read:

39. (1) On or after the changeover date, a successor employer and all of the bargaining agents that represent employees of the successor employer to whom the Labour Relations Act, 1995 applies may agree to change the number and description of the bargaining units in respect of which the bargaining agents have bargaining rights.

(2) Despite subsection (1), a successor employer and two or more but not all of the bargaining agents that represent employees of the successor employer to whom the Labour Relations Act, 1995 applies may agree to change the number and description of the bargaining units in respect of which they have bargaining rights if the agreement does not change or affect the description of any other bargaining unit and does not result in employees who were not in any bargaining unit being included in a bargaining unit.

39. The first phrase of section 20(2) suggests that when an application is made to the Board to assist parties to resolve and determine their bargaining unit configuration after the changeover date, then section 20(2) is applicable.

40. Section 20(2) applies to the agreement concluded between the OTB and CUPE (and other unions) on October 18, 2000. (The Ontario Nurses' Association, which represented employees of a predecessor employer, was not a party to the agreement). Their agreement may not "result in employees who were not in any bargaining unit being included in a bargaining unit". Paramedic employees were not in a bargaining unit of a predecessor municipality. They could not therefore have been included within the CUPE bargaining unit.

41. Section 31 of Bill 25 also has a bearing upon the matter. That section reads:

42. (1) Before January 1, 2001, for the purposes of section 22 of the Public Sector Labour Relations Transition Act, 1997 the transition board may apply to the Ontario Labour Relations Board for an order determining the number and description of the bargaining units that, in the Board's opinion, are likely to be appropriate for the city's operations.

(2) An order by the Ontario Labour Relations Board under section 22 of the Public Sector Labour Relations Transition Act, 1997 is binding upon the city as if the application had been made by the city, and is binding even if the order is not made until after December 31, 2000.

(3) An order made under section 22 of the Public Sector Labour Relations Transition Act, 1997 on an application under subsection (1) cannot take effect before January 1, 2001.

(4) If the transition board applies under subsection (1) for an order under section 22 of the Public Sector Labour Relations Transition Act, 1997, during the period beginning 10 days after the application is made and ending when an order comes into effect, no application may be made for certification of a bargaining agent to represent employees of an old municipality who are not members of a bargaining unit when the application is made.

(5) During the period beginning when subsection (1) comes into force and ending on December 31, 2000, no application may be made for certification of a bargaining agent to represent employees who are already represented by a bargaining agent and no application may be made for a declaration that a bargaining agent that represents such employees no longer represents them.

(6) On and after January 1, 2001, the right to make an application described in subsection (5) is (subject to the Public Sector Labour Relations Transition Act, 1997) determined under the Act that otherwise governs collective bargaining in respect of the employees.

42. The OTB made application to the Board under section 31 of Bill 25. That application resulted in the Board's decision of January 11, 2001. It might appear to have been not strictly necessary for the OTB to do so in respect of the CUPE bargaining unit because that unit was largely agreed with CUPE. It might seem therefore that the labour relations consequences of that agreement could have been determined wholly under section 30 of Bill 25, without reference to the Board. However, there were labour relations consequences of the amalgamation which required the Board's involvement: some positions on the peripheries of CUPE's and the CIPP's (representing professional employees) bargaining units needed resolution; the scope of the professional employees bargaining unit needed determination, and so on. Hence, the OTB needed to use section 31 to determine all outstanding matters concerning the transition.

43. The distinction between an agreement under section 30 of Bill 25 (which is like an agreement under section 20 of Bill 136) and an order under section 31 of Bill 25 (which is like an order under section 22 of Bill 136) has some significance. It affects when the bargaining unit for the new employer comes into effect. If section 30 applied to the OTB's agreement with CUPE, CUPE's bargaining unit would have become effective on January 1, 2001. However, by virtue of section 31(3) of Bill 25, as read with section 22(1) of Bill 136, the date of the Board's order was January 11, 2001 and it might then seem that CUPE's bargaining unit became effective from that date. However, section 22(1) stipulates that any order of the Board is subject to any agreement concluded under section 20 by the parties. The bargaining unit agreement between CUPE is such an agreement. As stated above, that agreement was in effect from January 1, 2001. Hence, although the Board's order was made on January 11, 2001, the bargaining unit agreed between the OTB and CUPE was already effective and had been so effective from January 1, 2001.

44. Section 22(1) of Bill 136 read as follows:

45. (1) Subject to any agreement under section 20 that is in effect, the Board, upon the application of a successor employer or any bargaining agent that has bargaining rights, may by order determine the number and description of bargaining units that are appropriate for the successor employer's operations after the occurrence described in sections 3 to 10.

46. Section 31(4) of Bill 25 restricts applications for certification. They may not be made in respect of certain employees until the Board makes an order determining the appropriate bargaining unit and bargaining agents. In this case that would have been on January 11, 2001. However, OPSEU correctly argues that it is not restricted by that provision from bringing its certification application because it has not sought to represent "employees of an old municipality who were not members of a bargaining unit when the application" was made. The paramedics were not employees of an old municipality.

47. As in section 30(5) of Bill 25, under section 31(6) of Bill 25, OPSEU's certification application is to be determined under the Act (that being "the Act that otherwise governs collective bargaining in respect of the employees"), yet subject to Bill 136.

48. It follows that OPSEU's certification application must be determined under the Act after January 1, 2001 (subject to Bill 136). So, on the application date, January 8, 2001, CUPE had a valid agreement with the City under which CUPE was recognized for all Outside/Inside employees. That would appear to be a voluntary recognition agreement under the Act, one which would preclude OPSEU's certification application. However, the application of the Act is subject to Bill 136.

49. This requires a more detailed look at Bill 136. I have already referred to the impact of section 20(2) on CUPE's agreement with the OTB. As stated, the bargaining unit agreement of October 18, 2000 between CUPE and the OTB became effective only on January 1, 2001. The bargaining units which applied before then were those described in section 14 of Bill 136. That section reads:

50. (1) On the changeover date, each bargaining agent that had bargaining rights in respect of a bargaining unit of a predecessor employer immediately before the changeover date has bargaining rights in respect of a like bargaining unit of the successor employer, but the description of the bargaining unit shall be such as to include only,

(a) employees who immediately before the changeover date were employees of the predecessor employer in the bargaining unit for which the bargaining agent had bargaining rights; and

(b) employees who are hired to replace employees described in clause (a).

(2) This section does not apply with respect to a predecessor employer or successor employer that is the Crown.

(3) For greater certainty, none of the following, other than employees described in clause (1) (b), become members of a bargaining unit as a result of the operation of this section:

1. An employee of the successor employer who, immediately before the changeover date, was employed by a predecessor employer that is the Crown.

2. An employee of the successor employer who, immediately before the changeover date, was not employed in a bargaining unit of a predecessor employer.

3. It seems clear that the implication of section 14(1) is that CUPE had bargaining rights in respect of employees for whom it had held bargaining rights previously (and their replacements), and not for other employees. The statutory intention is made more clear by the provisions of section 14(3). Employees who were not in a bargaining unit of a predecessor municipality or who were employed by the Crown (as a predecessor employer) prior to the changeover date are not to be deemed to be employees who are covered by the bargaining unit concluded by, in this case, the OTB and CUPE. The reference to "a predecessor employer that is the Crown" has a specific meaning under Bill 136. Although many of the paramedic employees whom OPSEU wishes to represent were employees of the Crown before their employment by the City, the Crown was not a "predecessor employer" for the purposes of the Act. Nevertheless, the paramedic employees were not in a bargaining unit of a predecessor municipality at the changeover date. Hence, by virtue of the provisions of section 14(3)2, the paramedic employees did not fall into CUPE's bargaining unit by reason of section 14(1).

4. Section 14 would appear to apply to this case because it falls under the heading, "Status of Collective Agreements, Etc., on the Changeover Date", as much as, if not more than, would sections 20 and 22, which fall under the heading, "Alterations to Bargaining Units, Etc., after the Changeover Date". That is because the alterations to the bargaining unit occurred before the changeover date, on October 18, 2000, even though they were only effective from January 1, 2001.

5. Counsel for CUPE correctly points out that the downloading of land ambulance services under the Ambulance Act has nothing intrinsically to do with the creation of the City under Bill 25. As counsel argues, the coincidence in time between the assumption of the land ambulance service by upper-tier municipalities and the changeover date of Ottawa's municipal administration from the OTB to the City was fortuitous, in the sense that the land ambulance service could have been taken on by the Region or the OTB at an earlier date. But that did not happen. January 1, 2001 was a final date, not an effective date, as contemplated in Bill 25. Yet, when the Region and the OTB elected to make January 1, 2001 the effective date for taking the paramedic employees into employment they became affected by the provisions of Bill 136 and Bill 25 and by the agreement which had been concluded between the OTB and CUPE on October 18, 2000. There is nothing in that legislation to suggest that employees who came to be employed by the City on January 1, 2001 by a route other than the amalgamation of the various local authorities into the new city were to be treated differently from what is provided for in those statutes. Consequently the paramedic employees must be treated in the manner described therein: they are to be treated as employees who, immediately before the changeover date were not employed in a bargaining unit of a predecessor employer, and immediately afterwards became employees of the City subject to Bill 136 and Bill 25 and any agreement applicable to them.

6. OPSEU argues that employees who were not employees of a predecessor municipality, were not automatically covered by the agreement reached between CUPE and the OTB in respect of CUPE's bargaining unit with the City. On this argument they did not become so covered until the Board's decision of January 11, 2001, when the bargaining unit agreement between CUPE and the OTB was made applicable to all of the City's employees who fell within it. This argument appears to be fortified by the provisions of section 23 of Bill 136, the relevant portions of which read:

7. (1) Following a request under subsection 21 (4) or when making an order under section 22, the Board shall determine which one of the bargaining agents, if any, represents the employees in each bargaining unit whose description is changed by the agreement under section 20 or the order under section 22.

(2) The Board shall make the determination by conducting a vote or votes of the employees in each bargaining unit.

(4) If any employee in the bargaining unit of the successor employer was employed, immediately before the changeover date, by a predecessor employer that was the Crown and was represented, immediately before the changeover date, by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993, the ballot must include that bargaining agent as a choice.

(5) If 40 per cent or more of the employees in the bargaining unit were not represented by a bargaining agent immediately before the changeover date, the ballot must include having no bargaining agent as a choice.

(6) An employee described in subsection (4) shall be deemed to have not been represented by a bargaining agent immediately before the changeover date for the purposes of subsection (5).

(10) No vote is required if the order made under section 22 does not change the number, or description of the bargaining units. In that case, the order under this section must provide that the existing bargaining agents continue to represent the employees in the bargaining units.

(11) Subject to subsection (12), no vote is required with respect to a bargaining unit if all of the bargaining agents that represented any of the employees in the unit before the order was made under section 22 agree upon the bargaining agent (from among their number) to represent the employees in the unit and less than 40 per cent of the employees in the bargaining unit were not represented by a bargaining agent immediately before the changeover date. In that case, the order under this section must appoint the agreed bargaining agent.

(12) If any employee in the bargaining unit was employed, immediately before the changeover date, by a predecessor employer that was the Crown and was represented, immediately before the changeover date, by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993, subsection (11) does not apply unless that bargaining agent is a party to the agreement referred to in that subsection.

53. Sections 23(4), 23(6) and 23(12) of Bill 136 might give the impression that former Crown employees, like the paramedics, are to be treated differently from employees of the predecessor municipality. It appears that former Crown employees are not merely to be swept into the bargaining units agreed upon by the OTB and the various unions which represented the predecessor municipalities' employees. OPSEU relies, in this regard, upon by the Board's decision in Centre for Addiction and Mental Health, [1998] OLRB Rep. Sept./Oct. 759, at 764, ¶12, which contains the following:

... the language of the statute makes it clear that employees of the Crown before the changeover date must be considered to be unrepresented by a bargaining agent for the purpose of a vote under the Act. That result is consistent with the scheme of the rest of the Act which appears to contemplate for most purposes only bargaining agents who were bargaining agents before the changeover date. That is, bargaining rights are "frozen" as of the changeover date. Therefore, any employees who are organized by a trade union after the changeover date appear to be considered non-union employees for the purposes of any ballot. In the case of Crown employees they are also frozen as non-union employees. ...

54. Some distinctions need to be drawn, though. The Crown was not a predecessor employer for the purposes of Bill 136. It was the paramedics' (or many of them) former employer, but it was not a predecessor employer of the City as understood under Bill 136.

55. This suggests that the paramedics who became employees of the City on January 1, 2001 were not covered by the bargaining unit which CUPE acquired in its agreement with the OTB on October 18, 2000. That seems to be so because of the provisions of section 14 of Bill 14. This would suggest, as OPSEU argues, that the paramedics were therefore available to be represented by OPSEU and that OPSEU can be certified for that purpose.

56. This suggestion is unsustainable, though, for two quite distinct reasons. Firstly, the provisions of section 28(2) of Bill 136 prevent that from happening. Section 30(5) of Bill 25 makes any post-January 1, 2001 certification application subject to the provisions of Bill 136. At first glance it would appear that section 28(2) does not apply to the paramedics because they were members of a bargaining unit when the OTB's application to the Board under Bill 25 was made. But that section does apply. "A bargaining unit", referred to in section 28(2), is any bargaining unit of the predecessor employers. It is not any bargaining unit at all. The provision makes sense only if it concerns an existing bargaining unit of one of the predecessor employers.

57. What the Legislature was saying in section 28(2) of Bill 136 was that employees' terms and conditions of employment were going to be affected by the impending amalgamation and those who were not in a bargaining unit at the time the application was made to address the labour relations consequences of the amalgamation could join a trade union so that their interests could be articulated in the forthcoming hearing before the Board. They had 10 days within which to do so. Once the 10 days had passed, the moment to be represented by a union passed as well, until the Board ruled on the bargaining unit configuration of the new, amalgamated entity.

58. Section 28(2) applied to this case in the following manner. Ten days after the OTB's application to the Board under Bill 25 (and Bill 136) the opportunity to represent employees, who were not in a bargaining unit of any of the predecessor employers of the City, closed. That opportunity did not revive until January 11, 2001 (the date of the Board's order in the Bill 25 and Bill 25 application by the OTB), by which time the paramedics were within the CUPE bargaining unit.

59. The paramedics' representation by OPSEU in bargaining units before December 31, 2000 does not mean they were "members of a bargaining unit" for the purposes of section 28(2) of Bill 136. The reference to "a bargaining unit" in the section is a reference to a bargaining unit of a predecessor employer of the new City. It is not a reference to a bargaining unit in the abstract, for the reasons stated.

60. This means that there was no "open period" for OPSEU to apply to be certified as bargaining agent for the paramedics during the period starting 10 days after the OTB's application to the Board under Bill 25 (and Bill 136) until January 11, 2001. Accordingly, OPSEU's application for certification on January 8, 2001 was untimely. It occurred during a period when certification applications were precluded by operation of section 28(2) of Bill 136.

61. The second reason why OPSEU's contentions and reliance upon sections 14 and 23 of Bill 136 must fail, is as follows. OPSEU accepts that the paramedics fell into CUPE's bargaining unit when the Board made its order configuring the various bargaining units on January 1, 2001. That is the reason OPSEU seeks that configuration to be re-opened, so that a separate OPSEU paramedic unit can be established. But CUPE's bargaining unit became effective on January 1, 2001, not January 11, 2001. This is made clear in paragraph 43 above. The OTB – CUPE agreement includes all employees in the Outside/Inside unit, including the paramedic employees. As in York (Regional Municipality) and The Corporation of the City of Haliburton, above, CUPE and the City extended the parameters of CUPE's bargaining unit. All Outside/Inside employees of the former municipalities and all new employees whose positions fell within that unit became part of CUPE's bargaining unit. That voluntary recognition includes the accrual of the paramedics to CUPE"s bargaining unit. The accrual was effective from January 1, 2001. Accordingly, when OPSEU applied to be certified on January 8, 2001, the application was untimely.

62. I find therefore that OPSEU's certification application was untimely.

Whether the employees in OPSEU's proposed bargaining unit fall within CUPE's bargaining unit

63. The broad scope of CUPE's bargaining unit is such as to incorporate the paramedic employees for whom OPSEU seeks bargaining rights. As stated, that bargaining unit became applicable to the paramedic employees on January 1, 2001. Accordingly, the paramedic employees fall within CUPE's unit.

Should the City's bargaining unit configuration (as determined in the Board's decision of January 11, 2001) be re-opened for consideration?

64. Should I be wrong, and have misinterpreted the provisions of Bill 25 as read with Bill 136 and the Act, and should OPSEU's certification be timely notwithstanding my finding to the contrary, in what follows I consider whether it would be necessary, in that event, to re-open CUPE's bargaining unit for consideration and whether OPSEU's proposed bargaining unit might be appropriate.

65. If a separate paramedic bargaining unit were to be granted, that would necessarily involve re-visiting the bargaining unit configuration in the Bill 136 and Bill 25 application – it would involve carving the paramedic unit from the existing CUPE Outside/Inside unit.

66. Accordingly, if OPSEU's application were timely, it would be necessary to re-open consideration of CUPE's bargaining rights to determine whether paramedic employees should be excluded from CUPE's bargaining unit (as OPSEU wants), or whether that unit should be left in tact, as ordered by the Board on January 11, 2001 (as CUPE wants). The effect of leaving the unit as ordered on January 11, 2001 will be to have the paramedic employees remain within CUPE's unit.

Should there be a separate bargaining unit for paramedic employees, carved from the CUPE unit?

67. This is a certification application. In such applications the Board will usually consider whether the applicant's proposed bargaining unit is an appropriate unit. It may not be the most appropriate unit, so long as it is viable and not likely to cause serious labour relations problems for the employer. In applications under Bill 136 the test is rather different. The difference is set out in the Board's decision of January 11, 2001, at ¶23:

68. The Board exercises a different discretion when determining an appropriate bargaining unit under the Act than it does when determining a bargaining unit under the Labour Relations Act, 1995. In a certification application the Board is determining a unit appropriate for collective bargaining for unorganized persons. Under the Act there is no issue of access to collective bargaining. The emphasis is on broader, rationalized bargaining unit structures. Under the Labour Relations Act, 1995 the difficulties of organizing a large bargaining unit may be a relevant consideration. That is not so under the Act. Similarly, in the absence of agreement, unlike the situation of the normal successorship rules which apply under the Labour Relations Act, 1995, there is no presumption under the Act in favour of preserving the pre-existing bargaining unit structures. The test is different under the Act from that under the Labour Relations Act, 1995, and there is a different focus and emphasis. Under the Labour Relations Act, 1995 the test is whether the union's proposed bargaining unit is appropriate for collective bargaining; under the Act the test is whether the proposed bargaining unit is appropriate for the operational needs of the new entity's operations. The emphasis is now on the employer's operational needs. That is clear from the provisions of subsection 22(1) of the Act, quoted above. The determination of the appropriate bargaining unit must also be made in the context of the purposes of the Act, under section 1, which read:

69. To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.

70. To facilitate the establishment of effective and rationalized bargaining unit structures in restructured broader public sector organizations.

71. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restructuring in the broader public sector and in other specified circumstances.

72. To foster the prompt resolution of workplace disputes arising from restructuring.

73. The City has expressed no particular desire in favour, or against, a separate paramedic bargaining unit. I take that to mean, from the City's perspective, that its operational needs would be equally well served whether or not there is a separate paramedic unit. The City does not take the position that a paramedic unit would cause undue fragmentation, nor does it suggest that such a unit would cause serious labour relations harm. The question would appear then to be whether such a unit is an appropriate unit, the criterion used in certification applications.

74. The situation is complicated, though, by the fact that this is not a conventional certification application in which employees are unrepresented. The notion of an appropriate unit in a certification application is premised on the situation of an unorganized work force who are seeking to establish collective bargaining rights. The Board seeks to facilitate collective bargaining and so permits the recognition of bargaining units which the union concerned has been able to organize provided those units are viable for collective bargaining and are not likely to cause serious labour relations problems for the employer. They need not be the most appropriate units. In this case, if OPSEU's bargaining unit were denied, the paramedic employees would not be left unorganized. Their positions have accrued to CUPE's bargaining unit. They are part of that unit. The consideration in this case is rather to determine whether a separate unit is more appropriate than inclusion in CUPE's unit.

75. OPSEU points out that the City has four existing emergency service bargaining units as a result of the Bill 25 process. The addition of a further emergency service bargaining unit would not, in its submission, cause any particular difficulty. The paramedic employees have a long history of being represented separately from other employees, and they have been represented by OPSEU for many years. In OPSEU's submission, these facts support the continuation of a separate paramedic bargaining unit. In response, CUPE says a separate bargaining unit for paramedic employees will require a "carving out" from CUPE's bargaining unit and it will unnecessarily fragment the City's work force. CUPE points out that the other emergency services – the police and firefighters – have separate bargaining units because that is what is mandated by legislation. There is no equivalent statutory mandate for paramedic employees.

76. CUPE and OPSEU filed submissions after the hearing of instances in which the Board has either certified, or refused to certify, a separate paramedic unit. OPSEU provides the following list of separate paramedic bargaining units:

Separate Bargaining Units – paramedics – OPSEU

March 1, 2001

Private Owner/Operators

Royal City Ambulance Service

Amherstburg Ambulance Service

Thames Emergency Medical Services

Green's Ambulance Service Inc.

Lindsay and District Ambulance Service

Lakeshore Emergency Service Inc.

Bancroft Ambulance Service

City Ambulance Service

Halton-Mississauga Ambulance Service

Temagami Ambulance Service

Mount Forest Ambulance Service

Hospital Based

Kingston Regional Ambulance

Dunnville Ambulance Service

Municipal or Regional

Halton Region

Brant County

Bruce County

(All of the above have CUPE outside or roads units)

CUPE – Paramedic only Units

United Counties of Leeds/Grenville

As regards the list of private owner/operators provided by OPSEU, CUPE points out that these employers function only as ambulance services and that the units described are really all employee units.

72. CUPE has provided a list of bargaining units in which paramedic employees have been included within all-employee service units:

Hospitals

1. Brockville General Hospital

2. Campbellford Memorial Hospital

3. Deep River Hospital

4. Espanola General Hospital

5. Hotel Dieu Hospital (Niagara Region)

6. Mattawa General Hospital

7. North Bay General Hospital

8. Pembroke General Hospital

9. Peterborough Regional Health Centre

10. Perth & Smiths Falls Hospital

11. Red Lake Margaret Cochenour Hospital

12. Riverside Health Care Facilities

13. St. Catharines Hotel Dieu Hospital

14. Wingham & District Hospital

Municipalities

1. City of Toronto

2. Regional Municipality of York

3. County of Haliburton

4. Regional Municipality of Durham

5. City of Sudbury

6. CUPE refers to the Board's decision in Perth and Smiths Falls District Hospital (unreported decision of April 3, 2001, in Board File No. 0102-00-R) in which the Board refused to grant a separate paramedic employees bargaining unit, but rather integrated the paramedic employees with other hospital employees.

7. It appears that the Board's rationale for its decision on the bargaining unit configuration in Perth and Smiths Falls District Hospital was chiefly that it did not see "any pressing need to disturb the basic parameters of the bargaining units which have existed and functioned without any apparent difficulty in the operations of either the predecessor or successor employers" (¶41). The creation of a separate paramedic employees bargaining unit would have disturbed the established bargaining unit configuration which consisted of combined paramedic and hospital employee bargaining units. The Board saw no need to do so.

8. The issue of a separate paramedic employees' bargaining unit was raised in Hotel Dieu Hospital, above. The Board said this:

9. Counsel for Hotel Dieu and CUPE submitted that the extinguishing of OPSEU's bargaining rights by the operation of section 10 of CECBA renders the history of bargaining rights and patterns of bargaining units irrelevant for my exercise of discretion pursuant to section 69(6). Because those bargaining rights were extinguished, the paramedics and ambulance workers hired by Hotel Dieu had no union affiliation at their hire, and were added to the existing bargaining unit. But more important, they argued, both NOTL and Hotel Dieu have a successful history of collective bargaining for paramedics and ambulance workers within a larger service bargaining unit. At Hotel Dieu, the service unit has been in place for over 30 years, and ambulance attendants and paramedics have been part of it for those 30 years. The events which give rise to this hearing have not resulted in a change to Hotel Dieu's operations or activities, only an expansion. There is nothing of an operational nature that should cause the Board to rethink the existing structures. They also pointed to the "trend" set out in a number of Board decisions towards larger, broader based bargaining units. (see for example Humber/Northwestern/York-Finch Hospital [1997] OLRB Rep. Sept./Oct. 872). In addition, in sale of business cases, the Board has preferred larger bargaining units, where access to collective bargaining is not an issue (see for example Humber/Northwestern/York-Finch Hospital above) and has deferred to the bargaining unit structure in place at the successor employer (see for example Pembroke General Hospital [1997] OLRD. No. 3547). All those factors, counsel for CUPE and Hotel Dieu submitted, point to maintaining the paramedics and ambulance workers in the existing service unit.

10. I have concluded that it would be inappropriate to, effectively, "carve out" a paramedic unit from the existing service unit. As the cases identified above highlight, in the face of public sector restructuring, which has certainly affected hospitals, the Board has taken the opportunity to "modernize" bargaining structures, and create larger, broadly based bargaining units. What OPSEU is asking the Board to do in this case is go backwards, and create a bargaining unit essentially limited to a single classification, that of paramedic. The Board summarized its current approach in Humber/Northwestern/York-Finch Hospital at paragraph 30:

In exercising its discretion to determine what is "appropriate" under section 69(6) of the Act, I do not think that the Board can ignore what is going on in the rest of the collective bargaining system. Any sensible reading of the word "appropriate" must take these realities into account. And the dominant reality today is towards fewer, larger public sector institutions - be they hospitals, school board or municipalities - and fewer, bigger bargaining units.

76. The distinguishing feature between that situation and this is that the City's predecessors have not had paramedic employees. Consequently they have not historically been part of CUPE's bargaining unit. In Hotel Dieu Hospital there was a substantial history of intermingling between paramedics and other employees in the same bargaining unit. However, the Board's comments concerning the trend or desirability of larger, more broadly based bargaining units has application. The Board's aversion to fragmented or departmental bargaining units was also expressed in City of Sudbury (unreported decision of March 20, 2001, in Board File No. 3010-00-PS) at ¶30:

It is apparent that the history of collective bargaining among the larger predecessor municipalities involved separate office, clerical and technical or inside bargaining units as one distinct group of employees and service and maintenance or outside bargaining units as another distinct group of employees. That kind historical bargaining structure should not, in my view, be lightly interfered with except on agreement of the parties or for compelling reasons, particularly where that type of historical collective bargaining structure is, on the successor employer's submissions, consistent with its operational needs. In Peterborough Regional Health Centre, [2000] OLRB Rep August/September 715 the Board commented at 724: "...in the circumstances involving the amalgamation of broader public service entities under the Act [PSLRTA], the Board must be sensitive to the potential for further destabilization–caused by the reconfiguration of existing bargaining relationships–of an already disrupted work environment." See also Municipality of Chatham Kent, unreported, Board decision dated July 30, 1998, Board File No. 4579-97-PS and City of Kingston, unreported, Board decision dated August 4, 1998, Board File No. 4301-97-PS. I accept the City's submissions on this issue and am persuaded that there should be an inside office, clerical and technical employees' bargaining unit and a separate outside service and maintenance employees' bargaining unit.

77. Historically it would appear that the following situations have prevailed. Relatively few municipalities had ambulance services before the provincial download. In hospitals, paramedic employees were generally included within boarder employee hospital bargaining units. In small, private ambulance services only paramedic employees formed part of the bargaining unit. That was because they were the only employees. That situation could equally stand for the proposition that the paramedic employees were in all-employee bargaining units. Paramedic employees formerly employed by the province were in a large, OPS, province-wide bargaining unit. Hence the historical precedent does not particularly favour the creation of a separate paramedic bargaining unit.

78. The City makes clear that there is a distinct Emergency Medical Services department within the Emergency and Protective Services of the City. The City does not regard OPSEU's proposed unit as being inappropriate, nor that undue labour relations difficulties would be caused by its recognition. OPSEU says there is no intermingling of paramedic employees with other employees in that department; they work separately and operate as a separate functional unit. CUPE points out that, if OPSEU's proposal were accepted, there would be three bargaining agents in the Emergency and Protective Services section of the City: the firefighters' association, OPSEU, representing ambulance operators; and CUPE, representing by-law enforcement officers. CUPE suggests, and I accept, that would be unnecessarily fragmenting.

79. There are advantages and disadvantages of recognizing a separate bargaining unit for paramedic employees. The advantages are that those employees have historically been in separate paramedic bargaining units. That is the bargaining structure they are familiar with. The interest of continuity favours the recognition of OPSEU's proposed unit. There is no dispute the unit is viable. The City has no objection to it. No one anticipates any serious labour relations problems if OPSEU is certified for that unit. The disadvantages are numerous. A separate unit would detract from the success the parties (meaning CUPE and the City) have achieved in establishing a large, viable bargaining unit to cover all of the City's inside and outside employees. Recognizing a separate paramedic bargaining unit would mean that a portion of CUPE's bargaining unit would need to be carved out and given to OPSEU. There is no "craft" status attaching to paramedic employees and there is therefore no good reason why they should not be included in a comprehensive and certainly viable bargaining unit.

80. Weighing these considerations, I am satisfied that there should not be a separate bargaining unit of paramedic employees. As a consequence, if I am wrong to have concluded that OPSEU's certification application is untimely and if the application were timely, it would fail. The paramedic employees fall within CUPE's bargaining unit and that is where they should remain for the purposes of collective bargaining.

81. The Registrar will destroy the ballots cast in the representation vote taken in Board File No. 2946-00-R following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.

82. The responding party is directed to post a copy of the Notice attached to this decision adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted for a period of 30 days.

83. The application in Board File No. 2946-00-R is dismissed.

84. Board File No. 2883-00-R is OPSEU's section 69/1(4) application in respect of certain paramedics who were employed by Eastern Medical Services. Given the conclusions reached in this decision, and assuming OPSEU could establish an entitlement to relief in that application, the Board would not alter the Outside/Inside bargaining unit. As a consequence, that application fails and is dismissed.

"Christopher J. Albertyn"

for the Board

Appendix "A"

The Labour Relations Act, 1995

NOTICE TO EMPLOYEES

Posted by order of the Ontario Labour Relations Board

OPSEU applied to represent a bargaining unit of paramedic employees of the City. The Board has considered the application and concluded that a separate bargaining unit of paramedic employees is not appropriate for collective bargaining. Paramedic employees fall within CUPE's Outside/Inside bargaining unit. Accordingly, OPSEU's certification application has been dismissed and CUPE is the bargaining agent of the paramedic employees.